B. R. ARORA, J. - (1.) THIS miscellaneous petition is directed against the order dated January 30,1988, passed by the Additional Sessions Judge, Jaisalmer, in Criminal Revision No. 19 of 1987, by which the learned Additional Sessions Judge dismissed the revision petition filed by the petitioners.
(2.) THE Station House Officer, Police Station, Jaisalmer, on February 23,1987, filed a complaint under Section 145, Cr. P. C. in the Court of the Sub-Divisional Magistrate, Jaisalmer, on the ground that there is likelihood of breach of peace with respect to Shiv Temple situated Gandhi Colony of Jaisalmer and Soni community and Swami community -both - claim their possession over the temple. It was, also, mentioned in that a complaint under Section 107/116 of the Code of Criminal Procedure against both Communities on February, 20,1987. According to the the complaint, as there was likelihood of breach of peace with respect to the possession of this Shiv temple, proceedings under Section 145, Cr. P. C. May be taken and the temple may be attached and a Receiver may be appointed. After the receipt of this complaint, the learned Magistrate fixed the case for local inspection on May 24,1987 and after visiting the spot and perusing the complaint, the learned Magistrate on February 24,1987, drawn a preliminary order under Section 145 Cr. P. C. and attached the property and also appointed the Station House Officer as the Receiver for taking possession and managing the property of the temple till further orders. THE learned Magistrate also, issued notices to the party No. 1 as well as to the party No. 2. After the service of the notices, party No. 1 submitted an application under Section 146 (2) Cr. P. C. on March 20,1987, and requested the Court to drop the proceedings. It was stated in the application that with respect to this very temple, proceedings under Section 145 Cr. P. C. were earlier taken on November 8,1985, on the report of the Station House Officer, police Station, Jaisalmer, and after the inquiry, the proceedings were dropped by the learned Sub-Divisional Magistrate by his order dated March 31,1986. THE party No. 2 filed a reply to this application and the learned Magistrate, by his order dated June 16,1987, rejected the application filed by party No. l and fixed the case for evidence on June 23,1987. Dissatisfied with the order dated June 16, 1987, passed by the Sub-Divisional Magistrate, the party No. 1 Bheek Chand and Bhanwar Lal filed a revision petition before the learned Additional Sessions Judge Jaisalmer, who by his order dated January 30,1988, dismissed the revision petition filed by the petitioner It is against this order that the present petition under Section 482, Cr. P. C. has been filed by the petitioners. I have heard the learned counsel for the petitioners, the learned counsel for the respondents and the learned Public Persecutor. It is contended on behalf of the petitioners that this temple was given by the ancestors of Damodar Das Soni to his community in the year 1960 and that the Soni Community kept the respondent No. 3 Bhawani Giri as the Pujari. The possession over this temple was of their community, which fact has been admitted by Shanker Giri himself, and the petitioners are in the possession of this temple. Their possession was even recognised by the Sub- Divisional Magistrate in the earlier proceedings, which were drawn under Section 145, Cr. P. C. and ended in their favour on March 31,1986 the Sub-Divisional Magistrate dropped the proceedings. His further contention is that when once the proceedings under Section 145, Cr. P. C. were dropped, the second application under Section 145,cr. P. C, on the same facts and between the same parties, is not maintainable. In support of his case, the learned counsel for the petitioners has placed reliance on. 1970 (72) Bombay Law Report 820, 1962 (1) (Cr. L. J. 821, 1964 (1) Cr. L. J. 95, 1976 Cr. L. R. (Raj.) 355. By placing reliance over these authorities, learned counsel for the petitioners submitted that the proceedings should be quashed in the present case. He has, further, submitted that there is no dispute in the present case and before taking action under Section 145,cr. P. C, the dispute should be bonafide one. Oh this point, the learned counsel for the petitioners has placed reliance on 1981 R. C. C. 57. The learned counsel for the respondents, on the other hand has supported the order passed by the learned Lower Court and has raised there preliminary objections. The first preliminary objection raised by the learned counsel for the respondent No. 2 and is that the order of attachment was passed on February 24, 1987, which has not been challenged by the petitioners and, therefore, the present petition is not maintainable. His further submissions is that the petitioners have filed merely an application on March 20, 1987, Praying therein that the order of attachment may be withdrawn. Against the dismissal of that application a revision petition was filed, which was dismissed and this miscellaneous petition has been filed before this Court. He has also submitted that there is a specific bar under section 397 (3) Cr. P. C. for the maintainability of the second revision by the same person and to circumvent that bar, the petition under Section 482,cr. P. C. has been filed, which is not maintainable. In Support of his contention, the learned counsel for the respondents has placed reliance on Rajan Kumar Machananda vs. the State of Karnataka (1 ). The third preliminary objection taken by the learned counsel for the respondents is that the respondent No. 4 and 5, Shiv Giri and Ramlakhan Giri,were the parties in the proceedings before the trial Court, as well as before the revisional Court and the order under revision was passed in their presence. These two persons were impleaded as party before this Court, also, but against them the proceedings were, later on, dropped by the petitioner. He, therefore, submits that in the absence of Shiv Giri and Ramlakhan Giri, the order passed in their favour by the learned Additional Sessions Judge cannot be set-aside. Regarding the arguments raised by the learned counsel for the petitioners, the reply of the learned counsel for the respondents is that the earlier proceedings, taken under Section 145 Cr. P. C. were dropped by the learned Sub-Divisional Magistrate only on the ground that there is no apprehension of breach of peace. The matter was not decided on merits. The question of possession was also, not decided by the learned Sub-Divisional Magistrate. It is, further, argued by the learned counsel for the respondents that as the matter was not earlier decided by the Court, therefore, these proceedings cannot be said to be second proceedings and the Court has power to determine the question regarding the possession of the property on the relevant date. The learned counsel for the respondents further Submitted that the possession of the petitioners over the property was not recognised by the learned Sub-Divisional Magistrate and the possession of the property is with the non-petitioners. Before dealing with the case on merits, would like first to deal with the preliminary objections. So far as the first objection, raised by the counsel for the non-petitioner: that the order of the attachment has not been challenged by the petitioners and only an application for withdrawal of the attachment order has been made and therefore the present petition is not maintainable, is concerned, suffice it to say that in the relief clause, the petitioners have specifically mentioned that as the earlier proceedings under Section 145 Cr. P. C. ended in favour of the party No. l,therefore, the present proceedings cannot be allowed to continue and it was prayed that the proceedings should be dropped. When the petitioners prayed before the Sub-Divisional Magistrate for dropping the proceedings itself, then it will not matter whether an order of attachment was challenged or not. If the application filed by the petitioners. would have been the order of attachment would, also, have fallen to the ground. There is, thus no force so far as the first preliminary objection is concerned. Regarding the preliminary objection No. 3. it may be noted that Shiv Giri and Ramlakhan Giri, who were parties before the Additional Sessions Judge, were also party before the Sub-Divisional Magistrate but by an order dated March 18,1987 in the files of the Sub-Divisional Magistrate, the proceedings against them were dropped. When Shiv Giri and Ramlakhan Giri were not party in the proceedings before the trial Court then their not impleading as party will not affect, in any way, the case of the petitioners.
(3.) THE second preliminary objection, raised by the learned counsel for the respondent is regarding the maintainability of the present petition under Section 482, Cr. P. C. THE learned Sub- Divisional Magistrate, on the complaint filed by the Station House Officer, Police Station Jaisalmer, by his order dated February 24,1987, drawn the preliminary order and appointed the S. H. O. as the Receiver and issued notices. After the receipt of the notice, the petitioners, who were party No. l before the Sub- Divisional Magistrate, filed an application under Section 145 (2) Cr. P. C. , which was dismissed by the learned Sub-Divisional Magistrate by his order dated June 16,1987. Aggrieved with the order dated June, 16,1987. Passed by the learned Sub-Divisional Magistrate, the petitioners filed a revision petition before the Additional Sessions Judge, Jaisalmer, who by his order dated January 30, 1988, Dismissed the revision petition filed by the petitioners. As there is a statutory bar provided under Section 397 (3) Cr. P. C. for filing a second revision petition by same party, and to circumvent that bar, the petitioners have filed this petition under Section 482,cr. P. C. By this petition, the petitioners, want to get the order passed by the Sub-Divisional Magistrate revised and in this view of the matter, the petition under Section, 482 Cr. P. C. is nothing but a second revision petition, though styled as a petition under Section 482, Cr. P. C. Merely by changing the nomenclature, the nature of the petition cannot be change. THE Supreme Court, in the case of Ranjan Kumar vs. the State of Karnataka (Supra) dealing with the maintain aloipity of petition under Section 482, Cr. P. C. in the presence of specific bar of Section 397 (3) Cr. P. C. , has observed as under :- Where a revision petition is dismissed by the Sessions Court second revision would not lie to the High Court. Merely by saying that the jurisdiction of the High was for exercise of its inherent power being invoked, the statutory bar should not have been over-come. If that was to be permitted, very revision applications facing the bar of Section 397 (3) Cr. P. C. could be labelled as one under Section 482. " Merely by saying that the inherent juris diction of the High Court Under Section 482,cr. P. C. is being invoked, the statutory bar cannot be over come, Powers under section 482, Cr. P. C. can be exercised by the Court when there is abuse of the process of the Court or the powers are required to be exercised if they are necessary to give effect to any order made under this Code or are necessary to achieve the ends of justice. None of the conditions exercise the inherent powers vested the Court under Section 482, Cr. P. C. is present in the instant case, When none of the conditions laid down in Section 482 Cr. P. C. is attracted then in view of the statutory bar of second revision laid down by the Code of Criminal Procedure under Section 397 (3 ). the party cannot be allowed to take recourse of Section 482 Cr. P. C. and thereby circumvent the provisions of Section 397 (3) Cr. P. C. The petition filed by the petition is, therefore, not maintainable. As I found that the present petition under Section 482 Cr. P. C. , in view of the statutory bar provided under Section 482, Cr. P. C. is not maintainable, it is not necessary to decide the other points. But suffice it to say that while deciding the earlier application under Section 145,cr. P. C. the learned Sub-Divisional Magistrate did not decide the question Of possession between the parties and dropped the proceedings merely on the ground that there is no apprehension of breach of peace and as such it cannot be said that the proceedings initiated on the complaint filed by the Station House Officer, Police Station, Jaisalmer, on February 23,1987, are the second proceedings with respect to the same matter. ;